Brexit: Developments in Patents

Political controversy aside, just recently news has been coming out regarding post-Brexit developments in relation to patents.

If we start with the European Patent Convention (EPC), the European Patent Office has always and continues to make it clear that its sees no Brexit-related issues preventing the continuing operation of the UK and UK attorneys with European patents and the EPC. Indeed, this is not surprising given that several members of the EPC are not in the EU, such as Norway, Turkey and Switzerland.

Also on the positive front, the approach to a Unified Patent Court (UPC) remains in place, and, indeed, has moved a little closer to reality. The UK IP Minister announced on 26th April 2018 that the UK had ratified the Unified Patent Court agreement. The planning for a single Unified European Patent Court structure has been going on for a considerable period of time, and it is clear that the UK regards this development as beneficial for business. But, for the UPC to come into effect, ratification is necessary by the three major states, Germany, France and the UK. France having previously ratified the treaty, and the UK now having joined the club, somewhat ironically this now leaves just Germany to ratify. The German ratification is, however, on hold pending a decision by the German Constitutional Court. Only when the Court has accepted the Constitutionality of the UPC can the federal government go ahead.

[One issue regarding the UPC and the UK may attract political attention in the future. Thus, whilst major branches of the Court are to be established in Paris, Munich and London, ultimate appeals from UPC decisions will effectively be to the Court of Justice of the European Union (CJEU). A substantial part of the campaign for the UK to leave the EU involves the notion that the UK should take back control of its laws, with the CJEU no longer having a role in British law. The official position regarding this apparent conflict between ratification of the UPC and the Brexit negotiations appears to be that the UPC should be regarded as an international treaty having the obligations of an international treaty, rather than an EU matter as such. The argument therefore goes that even if the CJEU has a role in ultimate decision-making for the UPC, this does not cross the so-called “red line” to the effect that the UK should make and enforce its own laws. Whether this approach will cause any future controversy on the political front is not clear.]

Lastly in this update, a very important aspect of protection for pharmaceutical inventions is the Supplementary Protection Certificate (SPC), which theoretically can give up to a maximum of 5 years’ extension of protection in appropriate cases for pharmaceutical inventions. To the pharmaceutical industry this is of considerable importance because these extra years can easily be the most lucrative for revenue. However, SPCs are governed by an EU Regulation, and therefore strictly a part of the EU legislative framework.

The European Commission has recently published a paper, making it clear that when the UK leaves the EU the relevant EU Regulation will no longer apply to the UK. Currently, the EU and the UK are trying to agree a solution to the question of what happens to SPC applications filed before UK withdrawal from the EU. It is currently unclear and unknown whether the UK government intends to enact UK-specific SPC-type legislation which parallels EU SPCs for the future. This is currently the position in Switzerland, where the Swiss track EU legislation and decisions in relation to SPCs in Switzerland very closely. Presumably some corresponding approach is open to the UK government, but this is not clear.